Safe Harbor Not Loophole: Five Things We Could Do Right Now to Make the DMCA Notice and Takedown Work Better

There has been considerable discussion about how the DMCA notice and takedown procedures are “broken.” We don’t think that this is quite true—the procedures are manipulated, misunderstood and abused on a grand scale. That doesn’t mean that the notice and takedown procedure is “broken” any more than the laws against burglary, theft and tax evasion are “broken.” No statute can control unethical behavior by those who use the law as a flimsy excuse to get away with bad behavior.

Many Internet companies have interpreted the DMCA to permit bad behavior until the victim of the bad behavior notified the bad actor that they were behaving badly—each time they behaved badly. This “catch me if you can” interpretation of the DMCA was not at all what the Congress had in mind. We would go further and suggest that not only was it not what the Congress had in mind, it…